Citation Nr: 0028611
Decision Date: 10/31/00 Archive Date: 11/03/00
DOCKET NO. 98-00 229A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUE
Entitlement to service connection for prostate cancer.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Ferrandino, Associate Counsel
INTRODUCTION
The veteran had active service from October 1949 to July
1953.
By rating decision in November 1993, service connection for
carcinoma of the prostate was denied. This appeal arises
from a June 1996 rating decision of the Philadelphia,
Pennsylvania Regional Office (RO) that determined that new
and material evidence sufficient to reopen the veteran's
claim for service connection for prostate cancer had not been
submitted. A Notice of Disagreement was filed in February
1997. A Statement of the Case was issued in March 1997. A
substantive appeal was filed in January 1998 subsequent to a
December 1997 Supplemental Statement of the Case with a
request for a hearing before the Board in Washington, D.C.
On November 18, 1998, a hearing was held in Washington, D.C.,
before Iris S. Sherman, who is a member of the Board
rendering the final determination in this claim and who was
designated by the Chairman of the Board to conduct that
hearing, pursuant to 38 U.S.C.A. § 7102 (West Supp. 2000).
In a decision in February 1999, the Board determined that new
and material evidence had been presented to reopen the
veteran's claim for service connection for prostate cancer
and remanded the case to the RO for further development. The
case was thereafter returned to the Board.
FINDINGS OF FACT
1. The veteran's claim is plausible, and sufficient evidence
for an equitable determination of the veteran's claim has
been obtained.
2. The veteran participated in Operation BUSTER JANGLE in
service.
3. The Defense Threat Reduction Agency, Nuclear Test
Personnel Review indicated that that the veteran would have
received a probable dose of 0.006 rem gamma which had a
rounded and upper bound dose of 0.0 rem gamma (<0.01 rem
gamma). A scientific dose reconstruction indicated that the
veteran had virtually no potential for exposure to neutron
radiation. A reconstruction report indicated that the
veteran had no potential for internal exposure based on his
unit's activities. The application of the report's
methodology to the prostate indicated that his (50-year)
committed dose equivalent was 0.0 rem.
4. The veteran's prostate cancer, first shown several
decades after separation from service, is not shown to have
been related to an incident in service, including exposure to
radiation.
CONCLUSION OF LAW
Prostate cancer was not incurred in or aggravated by active
service, nor may it be presumed to have been incurred in
active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131,
1137 (West 1991 & Supp. 2000); 38 C.F.R. §§ 3.303, 3.307,
3.309, 3.311 (1999)
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
In a statement in April 1980, the veteran reported that in
service he participated in nuclear testing at Indian Springs
Air Force Base where he was stationed from October 1, 1951 to
December 1, 1951. The place of the test was Yucca Flats. It
was Operation Buster Jangle. He witnessed two or three
tests. He was assigned to an Air Police Squadron which was
located at Albuquerque, New Mexico, Special Weapons Command.
His rank was Airman First Class. His duty during Operation
Buster Jangle was security. During the explosions, he was in
the open. He had not been issued a film badge at the tests.
A notation from the National Personnel Records Center from
April 1980 indicates that the veteran's service medical
records were unavailable, presumably having been lost in a
fire in July 1973.
In an April 1981 report from the USAF Occupational and
Environmental health Laboratry/NTPR, it was indicated that
film dosimetry records available to the Air Force NTPR
Program showed a dosage reading of 0.000 rem for the veteran
in 1951. Historical records on file indicated that the
veteran was a member of the 4911th Air Police Squadron at
Kirtland Air Force Base, New Mexico. He was placed on
temporary duty to Indian Springs Air Force Base, Nevada on
October 1, 1951 for 90 days in Operation BUSTER-JANGLE.
Treatment records from Rolling Hill Hospital from February
1984 indicate that the veteran had a prostatic biopsy.
On a VA examination in May 1986, the veteran reported that he
had a hypervascular renal mass and a biopsy showed a
significant area of interstitial inflammation and fibrosis.
The etiology of this was unknown. The veteran stated his
benign biopsies were secondary to keeping himself in
excellent health. In 1951, he observed nuclear bombs as a
security observer. He did not know how close he was to the
nuclear blast. He reported that could feel the heat from the
blast. He reported that he saw half a dozen nuclear blasts.
He was in the Buster Jangle nuclear blast project. The
diagnoses included exposure by history to radiation and no
evidence of bone cancer.
In an October 1993 report, Stanley H. Shrom, M.D., indicated
that the veteran had a diagnosis of carcinoma of the prostate
in the spring of 1993. He underwent a bilateral pelvic
lymphadenectomy and radical prostatectomy on May 10, 1993.
Received were records from the Fox Chase Cancer Center. In
May 1994, the veteran was seen with a history of prostate
cancer diagnosed one year previously. His past medical
history was significant for a biopsy of his left hip several
years ago, which started with pain in the hip. The x-rays
showed an abnormality. Following a biopsy, the veteran was
told that the area was benign. In 1987, the veteran also had
a left kidney biopsy after the finding of microscopic
hematuria and an abnormality of the left kidney. Again, the
veteran was told that the pathology was benign. An increased
PSA was noted in March 1993. He had an ultrasound and
prostate biopsy followed by a radical prostatectomy in May
1993. The adenocarcinoma of the prostate had extended
through the capsule of the prostate and into the seminal
vesicles at that time. The veteran's social history included
that he was exposed to radiation in atomic bombs in 1951.
The summary included that the veteran had a history of Stage
C prostate cancer. He also had a history of exposure to
radiation in the past and had noted abnormal lymph nodes in
his right occiput and in his right groin.
In January 1996, the veteran was seen with no new complaints.
It was noted that, in summary, the veteran had a history of
prostate cancer, Stage B, and continued to be followed. He
had no complaints and his laboratory tests were within normal
limits.
In April 1996, it was noted that the veteran was seen for a
follow up. He had a history of prostate cancer status post
resection and was doing well. His PSA had consistently been
below 0.4 and. The results from his most recent PSA test
were still pending.
By rating action of June 1996, it was determined that new and
material evidence to reopen the veteran's claim for service
connection for prostate cancer had not been submitted. The
current appeal to the Board arises from this action.
VA treatment records from June 1994 to February 1996 include
that the veteran had a history of prostate cancer and radical
prostatectomy in May 1993.
At the Board hearing in November 1998, the veteran testified
that he was exposed to ionizing radiation as a result of his
participation in Operation Buster Jangle beginning in October
1951 and continuing for 90 days. He reported that he felt
that he was too close to ground zero but did not know exactly
how close. He could see the explosion. He could see the
dust and felt the heat and felt dizzy but did not have burns
or nausea. He did not recall if he had a radiation badge.
He would remain in the area for hours after a blast. He
stated that he was initially diagnosed with prostate cancer
in 1993 and he had an operation for it in May 1993. He was
currently undergoing chemotherapy treatment at the present
time. For the past three weeks, he had been on a new
medication. He was being treated by the Fox Chase Cancer
Center. He felt that his cancer was the result of radiation
exposure. He was surprised that he got the cancer as he took
good care of himself and was not exposed to hazardous
chemicals or any type of radiation exposure as part of his
job as a civilian after service.
In a October 1998 report from Naomi B. Haas, M.D. of the Fox
Chase Cancer Center, it was indicated that the veteran was
currently being treated for prostate cancer. Specifically,
the veteran was diagnosed in May 1994 [sic] with a Gleason
Grade 4+3=7 prostate cancer for which he underwent a radical
prostatectomy. He had a moderate to poorly differentiated
adenocarcinoma of the prostate. He was followed by medical
oncology and Dr. Haas until recently when his PSA was found
to be gradually increasing. His most recent tests had been
as high as 7.8. He began on Lupron therapy at that time and
his PSA decreased.
In a December 1999 report from the Defense Threat Reduction
Agency, Nuclear Test Personnel Review, it was indicated that
historical records confirmed that the veteran was present at
Operation BUSTER-JANGLE, a U.S. atmospheric nuclear test
series conducted at the Nevada Test Site during 1951. At
that time, he was assigned to Detachment One, 4901st Support
Wing, Indian Springs Air Force Base, Nevada. A careful
search of dosimetry revealed no record of radiation exposure
for the veteran. However, a scientific dose reconstruction
titled Analysis of Radiation Exposure for Military
Participants, Exercises Desert Rock I, II, and III -
Operation BUSTER JANGLE (DNA-TR-87-116), indicated that the
veteran would have received a probable dose of 0.006 rem
gamma. This had a rounded and upper bound dose of 0.0 rem
gamma (<0.01 rem gamma). A scientific dose reconstruction
titled Neutron Exposure for DOD Nuclear Test Personnel (DNA-
TR-84-405), indicated that, due to the distance of the
veteran's unit from ground zero, he had virtually no
potential for exposure to neutron radiation. A
reconstruction report titled Low Level Internal Dose Screen -
CONUS Tests (DNA-TR-85-317), indicated that the veteran had
no potential for internal exposure based on his unit's
activities. The application of the report's methodology to
the prostate indicated that his (50-year) committed dose
equivalent was 0.0 rem.
In a March 2000 report from the Chief Public Health and
Environmental Hazards Office to the Director of Compensation
and Pension Service, regarding the veteran, it was indicated
that the Defense Threat and Reduction Agency estimated that
the veteran was exposed to the following doses of ionizing
radiation during military service: 0.006 rem gamma, rounded
and upper bound dose of 0.0 rem gamma (less than 0.01 rem
gamma); virtually no potential for neutron; internal 50-year
committed dose equivalent to the prostate - 0.0 rem. The
Committee on Interagency Radiation Research and Policy
Coordination (CIRRPC) Science Panel Report Number 6, 1988,
did not provide screening doses for prostate cancer. The
sensitivity of the prostate to radiation carcinogenesis
appeared to be relatively low and not clearly established
(Health Effects of Exposure to Low Levels of Ionizing
Radiation (BEIR V), pages 316-318; Mettler and Upton, Medical
Effects of Ionizing Radiation, 2nd Edition, 1995, page 168).
In light of the above, the Chief Public Health and
Environmental Hazards Officer concluded that it was unlikely
that the veteran's prostate cancer could be attributed to
exposure to ionizing radiation in the service.
In a April 2000 letter from the Director of the Compensation
and Pension Service to the RO, regarding radiation review
under 38 C.F.R. § 3.311, it was indicated that an opinion was
requested from the Under Secretary for Health, concerning the
relationship between the veteran's disability and exposure to
radiation in service. A medical opinion was received that it
was unlikely that the veteran's prostate cancer resulted from
his exposure to ionizing radiation in service. The records
reflected that the disease was first diagnosed approximately
41 years after his last exposure. The Defense Threat
Reduction Agency estimated that the veteran was exposed to a
rounded and upper bound dose of less that 0.01 rem gamma,
with virtually no potential for neutron exposure. The 50-
year committed dose to the prostate was 0.0 rem. The Under
Secretary for Health's staff noted that the Committee on
Interagency Research and Policy Coordination report did not
provide screening doses for prostate cancer. The sensitivity
of the prostate to radiation carcinogenesis appeared to be
relatively low and was not clearly established. As a result
of the opinion and following review of the evidence in its
entirety, it was their opinion that there was no reasonable
possibility that the veteran's disability was the result of
such exposure.
II. Analysis
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if preexisting such service, was
aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. § 3.303(a) (1999). Where a veteran served
90 days or more during a period of war or during peacetime
service after December 31, 1946 and carcinoma becomes
manifest to a degree of 10 percent within one year from date
of termination of such service, such disease shall be
presumed to have been incurred in service, even though there
is no evidence of such disease during the period of service.
This presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 113, 1131, 1137 (West
l991 & Supp. 2000); 38 C.F.R. §§ 3.307, 3.309 (1999).
In general, a claimant seeking benefits under a law
administered by the Secretary of the Department of Veteran
Affairs shall have the burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded. The Secretary
has the duty to assist a claimant in developing facts
pertinent to the claim if the claim is determined to be well
grounded. 38 U.S.C.A. § 5107(a). Where a veteran is
seeking service connection for a radiogenic disease listed
under 38 C.F.R. § 3.311(b)(2), he or she is not required to
submit a "traditional" well-grounded claim. See Hilkert v.
West, 12 Vet. App. 145, 147-48 (1999); see also Wandel v.
West, 11 Vet. App. 200 (1998). Instead, "pursuant to
Congress' mandate, VA [has] established special procedures to
follow for those veterans seeking compensation for diseases
related to exposure to radiation in service." 12 Vet. App.
at 148. Section 3.311 creates a series of chronological
obligations upon both the claimant and the Secretary:
(a) Determinations of exposure and dose-
(1) In all claims in which it is
established that a radiogenic disease
first became manifest after service and
was not manifest to a compensable degree
within any applicable period as specified
in § 3.307 or § 3.309, and it is
contended the disease is a result of
exposure to ionizing radiation in
service, an assessment will be made as to
the size and nature of the radiation dose
or doses. When dose estimates provided
pursuant to paragraph (a)(2) of this
section are reported as a range of doses
to which a veteran may have been exposed,
exposure at the highest level of the dose
range reported will be presumed.
(2) Request for dose information. Where
necessary pursuant to paragraph (a)(1) of
this section, dose information will be
requested as follows:
(i) Atmospheric nuclear weapons test
participation claims. In claims based
upon participation in atmospheric nuclear
testing, dose data will in all cases be
requested from the appropriate office of
the Department of Defense.
(ii) Hiroshima and Nagasaki occupation
claims. In all claims based on
participation in the American occupation
of Hiroshima or Nagasaki, Japan, prior to
July 1, 1946, dose data will be requested
from the Department of Defense.
(iii) Other exposure claims. In all
other claims involving radiation
exposure, a request will be made for any
available records concerning the
veteran's exposure to radiation. These
records normally include but may not be
limited to the veteran's Record of
Occupational Exposure to Ionizing
Radiation (DD Form 1141), if maintained,
service medical records, and other
records which may contain information
pertaining to the veteran's radiation
dose in service. All such records will
be forwarded to the Under Secretary for
Health, who will be responsible for
preparation of a dose estimate, to the
extent feasible, based on available
methodologies.
(3) Referral to independent expert. When
necessary to reconcile a material
difference between an estimate of dose,
from a credible source, submitted by or
on behalf of a claimant, and dose data
derived from official military records,
the estimates and supporting
documentation shall be referred to an
independent expert, selected by the
Director of the National Institutes of
Health, who shall prepare a separate
radiation dose estimate for consideration
in adjudication of the claim. For
purposes of this paragraph:
(i) The difference between the claimant's
estimate and dose data derived from
official military records shall
ordinarily be considered material if one
estimate is at least double the other
estimate.
(ii) A dose estimate shall be considered
from a "credible source" if prepared by
a person or persons certified by an
appropriate professional body in the
field of health physics, nuclear medicine
or radiology and if based on analysis of
the facts and circumstances of the
particular claim.
(4) Exposure. In cases described in
paragraph (a)(2)(i) and (ii) of this
section:
(i) If military records do not establish
presence at or absence from a site at
which exposure to radiation is claimed to
have occurred, the veteran's presence at
the site will be conceded.
(ii) Neither the veteran nor the
veteran's survivors may be required to
produce evidence substantiating exposure
if the information in the veteran's
service records or other records
maintained by the Department of Defense
is consistent with the claim that the
veteran was present where and when the
claimed exposure occurred.
(b) Initial review of claims. (1) When
it is determined:
(i) A veteran was exposed to ionizing
radiation as a result of participation in
the atmospheric testing of nuclear
weapons, the occupation of Hiroshima or
Nagasaki, Japan from September 1945 until
July 1946 or other activities as claimed;
(ii) The veteran subsequently developed a
radiogenic disease; and
(iii) Such disease first became manifest
within the period specified in paragraph
(b)(5) of this section; before its
adjudication the claim will be referred
to the Under Secretary for Benefits for
further consideration in accordance with
paragraph (c) of this section. If any of
the foregoing 3 requirements has not been
met, it shall not be determined that a
disease has resulted from exposure to
ionizing radiation under such
circumstances.
(2) For purposes of this section the term
"radiogenic disease" means a disease
that may be induced by ionizing radiation
and shall include the following:
(i) All forms of leukemia except chronic
lymphatic (lymphocytic) leukemia;
(ii) Thyroid cancer;
(iii) Breast cancer;
(iv) Lung cancer;
(v) Bone cancer;
(vi) Liver cancer;
(vii) Skin cancer;
(viii) Esophageal cancer;
(ix) Stomach cancer;
(x) Colon cancer;
(xi) Pancreatic cancer;
(xii) Kidney cancer;
(xiii) Urinary bladder cancer;
(xiv) Salivary gland cancer;
(xv) Multiple myeloma;
(xvi) Posterior subcapsular cataracts;
(xvii) Non-malignant thyroid nodular
disease;
(xviii) Ovarian cancer;
(xix) Parathyroid adenoma;
(xx) Tumors of the brain and central
nervous system;
(xxi) Cancer of the rectum;
(xxii) Lymphomas other than Hodgkin's
disease;
(xxiii) Prostate cancer; and
(xxiv) Any other cancer
(3) For purposes of paragraphs (a)(1) and
(b)(1) of this section, "radiogenic
disease" shall not include polycythemia
vera.
(4) If a claim is based on a disease
other than one of those listed in
paragraphs (b)(2) or (b)(3) of this
section, VA shall nevertheless consider
the claim under the provisions of this
section provided that the claimant has
cited or submitted competent scientific
or medical evidence that the claimed
condition is a radiogenic disease.
(5) For the purposes of paragraph (b)(1)
of this section:
(i) Bone cancer must become manifest
within 30 years after exposure;
(ii) Leukemia may become manifest at any
time after exposure;
(iii) Posterior subcapsular cataracts
must become manifest 6 months or more
after exposure; and
(iv) Other diseases specified in
paragraph (b)(2) of this section must
become manifest 5 years or more after
exposure.
(c) Review by Under Secretary for
Benefits.
(1) When a claim is forwarded for review
pursuant to paragraph (b)(1) of this
section, the Under Secretary for Benefits
shall consider the claim with reference
to the factors specified in paragraph (e)
of this section and may request an
advisory medical opinion from the Under
Secretary for Health.
(i) If after such consideration the Under
Secretary for Benefits is convinced sound
scientific and medical evidence supports
the conclusion it is at least as likely
as not the veteran's disease resulted
from exposure to radiation in service,
the Under Secretary for Benefits shall so
inform the regional office of
jurisdiction in writing. The Under
Secretary for Benefits shall set forth
the rationale for this conclusion,
including an evaluation of the claim
under the applicable factors specified in
paragraph (e) of this section.
(ii) If the Under Secretary for Benefits
determines there is no reasonable
possibility that the veteran's disease
resulted from radiation exposure in
service the Under Secretary for Benefits
shall so inform the regional office of
jurisdiction in writing, setting forth
the rationale for this conclusion.
(2) If the Under Secretary for Benefits,
after considering any opinion of the
Under Secretary for Health, is unable to
conclude whether it is at least as likely
as not or that there is no reasonable
possibility, the veteran's disease
resulted from radiation exposure in
service, the Under Secretary for Benefits
shall refer the matter to an outside
consultant in accordance with paragraph
(d) of this section.
(3) For purposes of paragraph (c)(1) of
this section, "sound scientific
evidence" means observations, findings,
or conclusions which are statistically
and epidemiologically valid, are
statistically significant, are capable of
replication, and withstand peer review,
and "sound medical evidence" means
observations, findings, or conclusions
which are consistent with current medical
knowledge and are so reasonable and
logical as to serve as the basis of
management of a medical condition.
(d) Referral to outside consultants.
(1) Referrals pursuant to paragraph (c)
of this section shall be to consultants
selected by the Under Secretary for
Health from outside VA, upon the
recommendation of the Director of the
National Cancer Institute. The
consultant will be asked to evaluate the
claim and provide an opinion as to the
likelihood the disease is a result of
exposure as claimed.
(2) The request for opinion shall be in
writing and shall include a description
of:
(i) The disease, including the specific
cell type and stage, if known, and when
the disease first became manifest;
(ii) The circumstances, including date,
of the veteran's exposure;
(iii) The veteran's age, gender, and
pertinent family history;
(iv) The veteran's history of exposure to
known carcinogens, occupationally or
otherwise;
(v) Evidence of any other effects
radiation exposure may have had on the
veteran; and
(vi) Any other information relevant to
determination of causation of the
veteran's disease.
The Under Secretary for Benefits shall
forward, with the request, copies of
pertinent medical records and, where
available, dose assessments from official
sources, from credible sources as defined
in paragraph (a)(3)(ii) of this section,
and from an independent expert pursuant
to paragraph (a)(3) of this section.
(3) The consultant shall evaluate the
claim under the factors specified in
paragraph (e) of this section and respond
in writing, stating whether it is either
likely, unlikely, or approximately as
likely as not the veteran's disease
resulted from exposure to ionizing
radiation in service. The response shall
set forth the rationale for the
consultant's conclusion, including the
consultant's evaluation under the
applicable factors specified in paragraph
(e) of this section. The Under Secretary
for Benefits shall review the
consultant's response and transmit it
with any comments to the regional office
of jurisdiction for use in adjudication
of the claim.
(e) Factors for consideration. Factors
to be considered in determining whether a
veteran's disease resulted from exposure
to ionizing radiation in service include:
(1) The probable dose, in terms of dose
type, rate and duration as a factor in
inducing the disease, taking into account
any known limitations in the dosimetry
devices employed in its measurement or
the methodologies employed in its
estimation;
(2) The relative sensitivity of the
involved tissue to induction, by ionizing
radiation, of the specific pathology;
(3) The veteran's gender and pertinent
family history;
(4) The veteran's age at time of
exposure;
(5) The time-lapse between exposure and
onset of the disease; and
(6) The extent to which exposure to
radiation, or other carcinogens, outside
of service may have contributed to
development of the disease.
(f) Adjudication of claim. The
determination of service connection will
be made under the generally applicable
provisions of this part, giving due
consideration to all evidence of record,
including any opinion provided by the
Under Secretary for Health or an outside
consultant, and to the evaluations
published pursuant to §1.17 of this
title. With regard to any issue material
to consideration of a claim, the
provisions of § 3.102 of this title
apply.
(g) Willful misconduct and supervening
cause. In no case will service
connection be established if the disease
is due to the veteran's own willful
misconduct, or if there is affirmative
evidence to establish that a supervening,
nonservice-related condition or event is
more likely the cause of the disease.
38 C.F.R. § 3.311(1999).
In summary, this regulation establishes a series of
chronological obligations upon both parties. See Hilkert,
supra; Wandel, supra. First, the claimant must establish
that the veteran suffers from a radiogenic disease. See 38
C.F.R. § 3.311(b)(2). This disease must manifest within a
certain time period. See 38 C.F.R. § 3.311(b)(5). Once a
claimant has established a diagnosis of a radiogenic disease
within the specified period and claims that the disease is
related to his radiation exposure while in service, VA must
then obtain a dose assessment. 38 C.F.R. § 3.311(a)(1); see
Hilkert, supra; Wandel, supra. After it is determined by the
dose assessment that the veteran was exposed to radiation,
the RO is then required to refer the case to the Under
Secretary for Benefits for further consideration. 38 C.F.R.
§ 3.311(b); Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir.
1997), cert. denied, 140 L. Ed. 2d 181, 118 S. Ct. 1171
(1998); Hilkert, supra; Wandel, supra.
When the claim is referred, the Under Secretary for Benefits
"shall consider the claim with reference to the factors
specified in paragraph (e) of this section and may request an
advisory opinion from the Under Secretary for Health." 38
C.F.R. § 3.311(c)(1). After referring to these factors, the
Under Secretary for Benefits must then determine the
likelihood that the claimant's exposure to radiation in
service resulted in the current radiogenic disease. See 38
C.F.R. § 3.311(c)(1).
Since this determination relies heavily on medical and
scientific findings and analysis, the Under Secretary for
Benefits may request an advisory opinion from the Under
Secretary for Health to assist in carrying out the obligation
imposed by this regulation. See 38 C.F.R. § 3.311(c)(1)
(authorizing the Under Secretary for Benefits to request an
advisory opinion from the Under Secretary for Health). See
Hilkert at 149.
Initially, the undersigned notes that 38 C.F.R. § 3.309 is
not applicable to the veteran's claim as the veteran's
claimed disability is not one of the enumerated disabilities
under 3.309(d)(2).
The relevant sections of 38 C.F.R. § 3.309 provide:
§ 3.309 Disease subject to presumptive
service connection.
(d) Diseases specific to radiation-
exposed veterans. (1) The diseases listed
in paragraph (d)(2) of this section shall
be service-connected if they become
manifest in a radiation-exposed veteran
as defined in paragraph (d)(3) of this
section, provided the rebuttable
presumption provisions of § 3.307 of this
part are also satisfied.
(2) The diseases referred to in paragraph
(d)(1) of this section are the following:
(i) Leukemia (other than chronic
lymphocytic leukemia).
(ii) Cancer of the thyroid.
(iii) Cancer of the breast.
(iv) Cancer of the pharynx.
(v) Cancer of the esophagus.
(vi) Cancer of the stomach.
(vii) Cancer of the small intestine.
(viii) Cancer of the pancreas.
(ix) Multiple myeloma.
(x) Lymphomas (except Hodgkin's disease).
(xi) Cancer of the bile ducts.
(xii) Cancer of the gall bladder.
(xiii) Primary liver cancer (except if
cirrhosis or hepatitis B is indicated).
(xiv) Cancer of the salivary gland.
(xv) Cancer of the urinary tract.
(xvi) Bronchiolo-alveolar carcinoma.
NOTE: For the purposes of this section,
the term "urinary tract" means the
kidneys, renal pelves, ureters, urinary
bladder, and urethra.
(3) For purposes of this section:
(i) The term radiation-exposed veteran
means either a veteran who while serving
on active duty, or an individual who
while a member of a reserve component of
the Armed Forces during a period of
active duty for training or inactive duty
training, participated in a radiation-
risk activity.
(ii) The term radiation-risk activity
means:
(A) Onsite participation in a test
involving the atmospheric detonation of a
nuclear device.
(B) The occupation of Hiroshima or
Nagasaki, Japan, by United States forces
during the period beginning on August 6,
1945, and ending on July 1, 1946.
(C) Internment as a prisoner of war in
Japan (or service on active duty in Japan
immediately following such internment)
during World War II which resulted in an
opportunity for exposure to ionizing
radiation comparable to that of the
United States occupation forces in
Hiroshima or Nagasaki, Japan, during the
period beginning on August 6, 1945, and
ending on July 1, 1946.
(iii) The term atmospheric detonation
includes underwater nuclear detonations.
(iv) The term onsite participation means:
(A) During the official operational
period of an atmospheric nuclear test,
presence at the test site, or performance
of official military duties in connection
with ships, aircraft or other equipment
used in direct support of the nuclear
test.
(B) During the six month period following
the official operational period of an
atmospheric nuclear test, presence at the
test site or other test staging area to
perform official military duties in
connection with completion of projects
related to the nuclear test including
decontamination of equipment used during
the nuclear test.
(C) Service as a member of the garrison
or maintenance forces on Eniwetok during
the periods June 21, 1951, through July
1, 1952, August 7, 1956, through August
7, 1957, or November 1, 1958, through
April 30, 1959.
(D) Assignment to official military
duties at Naval Shipyards involving the
decontamination of ships that
participated in Operation Crossroads.
(v) For tests conducted by the United
States, the term operational period
means:
(A) For Operation TRINITY the period July
16, 1945 through August 6, 1945.
(B) For Operation CROSSROADS the period
July 1, 1946 through August 31, 1946.
(C) For Operation SANDSTONE the period
April 15, 1948 through May 20, 1948.
(D) For Operation RANGER the period
January 27, 1951 through February 6,
1951.
(E) For Operation GREENHOUSE the period
April 8, 1951 through June 20, 1951.
(F) For Operation BUSTER-JANGLE the
period October 22, 1951 through December
20, 1951.
(G) For Operation TUMBLER-SNAPPER the
period April 1, 1952 through June 20,
1952.
(H) For Operation IVY the period November
1, 1952 through December 31, 1952.
(I) For Operation UPSHOT-KNOTHOLE the
period March 17, 1953 through June 20,
1953.
(J) For Operation CASTLE the period March
1, 1954 through May 31, 1954.
(K) For Operation TEAPOT the period
February 18, 1955 through June 10, 1955.
(L) For Operation WIGWAM the period May
14, 1955 through May 15, 1955.
(M) For Operation REDWING the period May
5, 1956 through August 6, 1956.
(N) For Operation PLUMBBOB the period May
28, 1957 through October 22, 1957.
(O) For Operation HARDTACK I the period
April 28, 1958 through October 31, 1958.
(P) For Operation ARGUS the period August
27, 1958 through September 10, 1958.
(Q) For Operation HARDTACK II the period
September 19, 1958 through October 31,
1958.
(R) For Operation DOMINIC I the period
April 25, 1962 through December 31, 1962.
(S) For Operation DOMINIC II/PLOWSHARE
the period July 6, 1962 through August
15, 1962.
(vi) The term "occupation of Hiroshima or
Nagasaki, Japan, by United States forces"
means official military duties within 10
miles of the city limits of either
Hiroshima or Nagasaki, Japan, which were
required to perform or support military
occupation functions such as occupation
of territory, control of the population,
stabilization of the government,
demilitarization of the Japanese
military, rehabilitation of the
infrastructure or deactivation and
conversion of war plants or materials.
(vii) Former prisoners of war who had an
opportunity for exposure to ionizing
radiation comparable to that of veterans
who participated in the occupation of
Hiroshima or Nagasaki, Japan, by United
States forces shall include those who, at
any time during the period August 6,
1945, through July 1, 1946:
(A) Were interned within 75 miles of the
city limits of Hiroshima or within 150
miles of the city limits of Nagasaki, or
(B) Can affirmatively show they worked
within the areas set forth in paragraph
(d)(4)(vii)(A) of this section although
not interned within those areas, or
(C) Served immediately following
internment in a capacity which satisfies
the definition in paragraph (d)(4)(vi) of
this section, or
(D) Were repatriated through the port of
Nagasaki.
38 C.F.R. § 3.309 (1999).
Therefore, pursuant to 38 C.F.R. § 3.311, the RO requested a
dose assessment from the Defense Threat Reduction Agency,
Nuclear Test Personnel Review. It was indicated that that
the veteran would have received a probable dose of 0.006 rem
gamma which had a rounded and upper bound dose of 0.0 rem
gamma (<0.01 rem gamma). A scientific dose reconstruction
indicated that the veteran had virtually no potential for
exposure to neutron radiation. A reconstruction report
indicated that the veteran had no potential for internal
exposure based on his unit's activities. The application of
the report's methodology to the prostate indicated that his
(50-year) committed dose equivalent was 0.0 rem.
After receiving this information, the Director of
Compensation and Pension advised the RO in writing that there
was no reasonable possibility that the veteran's disability
resulted from radiation exposure in service. In the Hilkert
case, the Court held that a discussion by the Under Secretary
for Benefits of all of the factors under paragraph (e) is not
required if the Under Secretary for Benefits recommends that
there is "no reasonable possibility that the veteran's
disease resulted from radiation exposure in service" as
authorized under 38 C.F.R. § 3.311(c)(1)(ii).
While the veteran's private providers have noted a history of
radiation exposure in conjunction with treatment for prostate
cancer, the statement of the Director of Compensation and
Pension Service outweighs this statement regarding any
relationship between the veteran's prostate cancer and his
service. In this regard, the private provider did not
consider the amount of radiation exposure in the
notations. This is an important factor in determining
whether such exposure led to the veteran's prostate cancer.
ORDER
Entitlement to service connection for prostate cancer is
denied.
Iris S. Sherman
Veterans Law Judge
Board of Veterans' Appeals